August 25, 2009 - A Katowice, Poland resident has put the tobacco industry on alert with the filing of a lawsuit this month against Philip Morris Polska and Zakłady Przemysłu Tytoniowego (Tobacco Industry Works) in the central city of Radom).

Stanisław Lubicz-Sienicki is seeking zł. 10 million ($2.56 million) in damages from tobacco firms for the death of his mother, who died of lung cancer this summer and smoked Marlboro and Popularne (a polish brand made in Radom) brands of cigarettes, according to press reports.

Despite the slew of cases that have beleaguered Philip Morris and other producers in the United States, the lawsuit here caught Polish tobacco producers by surprise. But lawyers and tobacco makers downplayed the impact of the suit and said Lubicz-Sienicki and, perhaps others, face a steep uphill battle here.

"Frankly, we are surprised that there is such a case in Poland because the fact that smoking is damaging is universally known in our country," said Robert Wyszyński, a legal adviser with Phillip Morris Polska. "Despite the fact that it is universally known, Mr. Lubicz filed a claim."U.S. courts, which have been more receptive to plaintiff's claims, allow for class-action lawsuits, whereby a person can significantly broaden claims against tobacco makers. Not so in Polish courts, where the burden of proof in this case is more rigorous, according to industry members.

"The Polish system simply does not permit class action, so the wave of suits that came in the U.S. can't come here," said Jan Wierzbicki, director of corporate affairs at cigarette maker Reemstma Polska. Moreover, the burden of proof establishing a link between cause and effect is much more rigorous here, he said. "In our system you have to prove a clear cause-and-effect relationship," Wierzbicki said. In practice, that means a general link between smoking and cancer is not enough. "The basic concept is that you know what you are doing when you smoke," said Stanisław Dwernicki managing partner at law firm Gide Loyrette Nouel Polska.

Moreover, considering knowledge of the health hazards and warnings on cigarette packs and advertisements, producers can argue consumers are aware, responsible agents for their own actions. "Producers say, 'I have informed you, I have informed all of Poland, so I am in compliance with all the laws. In that case, I don't have any (responsibility) for results that the client should die of cancer,' " Dwernicki said.

Philip Morris is mum on the lawsuit. "We did not receive officially the contents of the suit filed in court by Mr. Lubicz," Wyszyński said. "We don't want to comment until we are able to get to know the arguments used by Mr. Lubicz."

In filing the suit, Lubicz-Sienicki has requested that the court waive its normal fees, which can run to 5-8% of the amount of damages sought. Lubicz-Sienicki said he is seeking a waiver because he does not want to benefit directly from the case, but would send settlement money to charity. "The man has based his waiver request on the fact that he wants to create a foundation that will help people that have suffered because of smoking," said Andrzej Almert, spokesman for the district court in Krakow, where the case is being considered.

Regardless of the outcome of the fee-waiver motion, the case itself is likely to move forward slowly. The court calendar in Krakow is booked for the next three months, Almert said. In addition, given the complicated medical and scientific nature of the case, the court will seek expert opinions before deciding the case. "For sure it won't end quickly," he said.

Regardless of delays, the Lubicz-Sienicki lawsuit has put the tobacco industry on notice.